Use of protected works for AI-generated content?

In its judgment of 2 April 2026 (Case No. I-20 W 2/26), the Higher Regional Court of Düsseldorf ruled:

Anyone who uses a copyright-protected photograph as a template and generates an AI image from it does not automatically commit copyright infringement.

🔍 Facts of the case

The applicant, a photographer, had taken a photograph showing a dog reaching for a toy beneath the surface of the water. A dog training school had uploaded the photograph to AI software, had a new image generated, and subsequently published it.

The photographer then took action against the publication of the AI-generated image and, following an unsuccessful warning letter, applied for an injunction via interim relief proceedings at the Regional Court of Düsseldorf (Decision of 22 December 2025 – Ref. 12 O 282/25), which, however, dismissed the application. The subsequent appeal to the Higher Regional Court of Düsseldorf was also unsuccessful.

⚖️ First instance: Regional Court of Düsseldorf: free adaptation pursuant to Section 23 of the German Copyright Act (UrhG)

The Regional Court of Düsseldorf classified the AI-generated image as a free adaptation, justifying this on the grounds that it was sufficiently distinct from the original. ‘Free adaptation’ is another concept specific to German law, which permits the use of an existing work without permission, provided the new work differs sufficiently from the previous one. The Regional Court thus approved the use of the earlier work without the creator’s consent.

⚖️ Second instance: Higher Regional Court of Düsseldorf: no personal intellectual creation

Although the Higher Regional Court of Düsseldorf confirmed the outcome, it corrected the legal classification: conceptually, a free adaptation presupposes the creation of a new work protected by copyright.

In doing so, the Higher Regional Court bases its reasoning on the concept of a ‘work’ as defined under EU law:

Accordingly, a work exists only if two conditions are met:

• an original, i.e. an independent intellectual creation

• and its expression in the concrete result.

This is lacking if the creation process is essentially determined by:

• technical processes

• predefined rules

• or other constraints

and there is no scope for artistic freedom.

➡️ Applied to AI-generated images, this means:

The decisive factor is whether a human being has creatively shaped the output or whether the design was essentially taken over by the software.

The AI-generated image does not qualify as work and is therefore not a free adaptation either.

No reproduction pursuant to Section 16 of the German Copyright Act (UrhG)

A copyright infringement presupposes that protectable elements of expression are adopted.

In the case of photographs, these are in particular:

• Framing

• Composition

• Lighting

The mere subject matter, however, is not protected.

In the present case, the similarities were limited to the subject matter ‘dog underwater with a toy’; distinctive creative elements, however, were not adopted.

📌 Implications for practice

• AI-generated images do not infringe copyright if only the subject matter is reproduced

• Protection exists only if distinctive creative elements are recognisable

💡 Our goal

Mars IP supports creatives and businesses in protecting their content and using AI in a legally compliant manner.

Do you have any questions? Please feel free to contact us.

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